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Poster: Fact_Checker Date: Jul 14, 2009 5:36pm
Forum: feature_films Subject: Re: Video-Cellar, I need a question answered (kinescopes, delayed broadcasts by affiliates)

Distribution of kinescopes to affiliate stations was NOT regarded as publication under the pre-1976 American copyright law. As we're talking about the Dumont network and the kinescope era, pre-1976 law applies. A few court decisions said that the networks and show producers had not forsaken their copyrights in these circumstances:

http://chart.copyrightdata.com/c01B.html#s315 (this case concerns NBC's broadcast of "Peter Pan" in 1960, shown on a delayed basis by a small number of affiliates)

http://chart.copyrightdata.com/c01B.html#s086

http://chart.copyrightdata.com/c01B.html#sc01B.1

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Poster: Video-Cellar Date: Jul 15, 2009 3:15am
Forum: feature_films Subject: Re: Video-Cellar, I need a question answered (kinescopes, delayed broadcasts by affiliates)

There is some debate as to interpreting the 1976 Act's definitions as being retroactive, effecting works existing as well as works yet to be created. The issue is whether a higher court would choose the definition of publication in the 1909 act over the 1976 act, which it might not. They are all lower court decisions. The only Circuit Court decision you linked to is a somewhat separate issue of a registered, unpublished work used as part of a derivative work.
It would be interesting whether the selective application of the 1909 Act in general, could potentially effect the validity of copyright in films from 1950 onwards that were published with notice but not timely registered.

This post was modified by Video-Cellar on 2009-07-15 10:15:04

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Poster: Fact_Checker Date: Jul 15, 2009 4:35am
Forum: feature_films Subject: Re: Video-Cellar, I need a question answered (kinescopes, delayed broadcasts by affiliates)

I believe that the "Peter Pan" decision IS the most relevant. The court decision specifically addresses whether the law as it was prior to the 1976 Act would be applied. Quoting specific wording from the court decision (which in turn in quoted at chart.copyrightdata.com/c01B.html#s315):

"The common law definition of publication as it existed prior to January 1978 will be applied to determine whether or when NBC published 'Peter Pan.'" And: "the 1976 Act's standard does not apply to asserted publications occurring before the effective date of the new Act, even though the cause of action accrued after the date."

Yes, this decision could be overturned by a higher court. As it is, there is a pattern in the law of granting copyright holders the rights they knew they were getting -- and obligations they knew they were undertaking -- when the copyrights began, plus any new privileges granted afterward. There isn't a pattern of taking away rights.

The consolation for public-domain firms is that penalties in these cases have been light. (See the summaries on the page linked above.) Whether that will still be the case now that there are stiff penalties for infringement without profit (let alone higher penalties when there is profit), who can say?